News

High Court hearing into tobacco plain packaging laws

By Greg Sherington

23 April 2012

Professor Gillian Triggs says the High Court decision over plain packaging laws will likely arrive quickly, but the determinations of other global bodies, such as the World Trade Organization (WTO) may take longer.

In an interview with CNN, Professor Triggs says the crux of the tobacco companies' argument before the High Court is that their intellectual property will be stripped away and therefore they have argued that they're entitled to some form of just compensation.

"There's a very good chance that the Government will win because the 'taking of property' is not one that gives benefit to the Government," Professor Triggs asserts.

"Where that is the case that does not act as an acquisition under the Australian constitution.

"The question is whether the change in how cigarettes are marketed constitutes a sufficient act of property."

Professor Triggs says one needs to be aware of the wider ramifications of the laws.

"Two countries have taken complaints about Australia over the laws, namely Honduras and the Ukraine, before the procedures of the World Trade Organization (WTO).

"In addition, there is the matter put forward by Phillip Morris to an arbitral process in relation to a Bi-Lateral Investment Treaty by Hong Kong and Australia which protects intellectual property rights.

"Potentially what could happen is the High Court rule in favour of the Government but a global body such as the WTO may step in and rule against it."

Professor Triggs says the question for the Australian Government, within the domestic situation, is the constitutionality of the legislation.

"On the other hand, the question before the World Trade Organization (WTO) and the Bilateral Investment Treaty is does the legilsation deprive the tobacco companies of their intellectual property in a way which is inconsistent with trade rules of the obligation to protect investments in a country, in this case Australia?

"One of the critical questions will be, can the Australia Government justify the legilsation on the grounds of its health concerns?

"And that comes down to whether or not you can demonstrate that plain packaging reduces smoking and therefore improves the health of the nation.

"That will be the key question for the World Trade Organization (WTO)."

Professor Triggs says the determinations of the WTO and Investment Treaty will be of particular interest to other countries.

"The arbitral process and the WTO process can be quite lengthly.

"Certainly the WTO attempts to achieve a result within 9 to 12 months, but these deadlines can be extended for one reason or another.

"So it could be quite a while before these global resolutions are reached."